92 Decision Citation: BVA 92-14032
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-40 958 ) DATE
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THE ISSUES
1. Entitlement to service connection for arthritis of the
lumbosacral spine.
2. Entitlement to service connection for folliculitis of
the thigh.
3. Entitlement to an increased rating for a herniated
nucleus pulposus at L5-S1, currently evaluated as 40 percent
disabling.
4. Entitlement to an increased (compensable) rating for
residuals of an infection of the lower left leg with
residual hypopigmentation.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Milo H. Hawley, Associate Counsel
INTRODUCTION
The veteran had over 10 years of active service at the time
of his discharge in February 1988.
By rating decision in August 1988 the St. Paul, Minnesota,
Regional Office (hereinafter RO) granted service connection
for residuals of an infection of the left lower leg with
residual hypopigmentation, and evaluated the same as
noncompensably disabling. That decision also denied service
connection for folliculitis of the thigh. The veteran filed
his notice of disagreement with that decision in March
1989. The statement of the case was issued in April 1989.
The veteran filed his substantive appeal in May 1989. A
supplemental statement of the case was issued in November
1989.
By rating decision in April 1990 the RO granted service
connection for a herniated nucleus pulposus at L5-S1, and
evaluated the same as 20 percent disabling. In June 1990,
the veteran filed his notice of disagreement with the 20
percent evaluation. A supplemental statement of the case
was issued in March 1991. By rating decision in February
1991 the RO increased the assigned evaluation for the
veteran's herniated nucleus pulposus to 40 percent,
effective the day following the veteran's discharge from
service. The appeal was docketed at the Board of Veterans'
Appeals (hereinafter Board) in August 1991. The appellant
is represented in his appeal by Disabled American Veterans,
to which the file was referred. That organization submitted
additional written argument to the Board in December 1991.
The issues of entitlement to service connection for
folliculitis of the thigh and to increased evaluations for a
low back disability and residuals of an infection of the
lower left leg are the subjects of a remand section of this
decision.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended that the veteran currently has arthritis of
the lumbosacral spine and that this should be considered as
a part of his service-connected low back disability.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the record supports the grant of
service connection for arthritis of the lumbosacral spine.
FINDINGS OF FACT
1. With respect to the issue of entitlement to service
connection for arthritis of the lumbosacral spine all
relevant evidence necessary for an equitable disposition has
been obtained by the RO.
2. Arthritis of the lumbosacral spine was first manifested
during active service.
CONCLUSION OF LAW
Arthritis of the lumbosacral spine was incurred during
active service. 38 U.S.C. §§ 1131, 5107.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is "well grounded" within the meaning of
38 U.S.C. § 5107. All relevant facts have been properly
developed and no further assistance to the veteran is
required to comply with the duty to assist mandated by
38 U.S.C. § 5107.
The report of an October 1984 service X-ray of the veteran's
lumbar spine states that minimal spurring was noted at the
L4-5 and L5-S1 levels. The impression was very minimal
degenerative changes of the lumbar spine. Although August
1989 and December 1990 reports of Department of Veterans
Affairs X-rays of the veteran's lumbosacral spine do not
refer to arthritis, January 1990 private magnetic resonance
imaging of the lumbar spine disclosed osteophytic spurs and
the conclusion included bony osteophytic spurring. In
resolving doubt in the veteran's behalf, service connection
for arthritis of the lumbosacral spine is granted.
38 U.S.C. §§ 1131, 5107.
ORDER
Service connection for arthritis of the lumbosacral spine is
granted.
REMAND
In view of the Board's decision concerning the issue of
service connection for arthritis of the lumbosacral spine,
the case is REMANDED to the RO for readjudication of the
issue of entitlement to an increased rating for the
veteran's low back disability. If the determination remains
adverse to the veteran, he and his representative should be
furnished with a supplemental statement of the case and be
afforded the appropriate opportunity to respond.
Thereafter, the usual appellate procedures should be
instituted and the case returned to this Board for further
appellate consideration. No action is required of the
veteran unless he receives further notice. The issues of
entitlement to service connection for folliculitis of the
thigh and to an increased rating for residuals of an
infection of the lower left leg with residual
hypopigmentation are deferred pending completion of this
REMAND. The sole purpose of this REMAND is to comply with
the requirements of due process.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
CHARLES E. HOGEBOOM (MEMBER TEMPORARILY ABSENT)
WAYNE M. BRAEUER
(CONTINUED ON NEXT PAGE)
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals. The remand portion of this decision is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal regarding
the matter as set forth in the remand.